Page 44 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

A foreign company or individual may be held a violation, even though they do not “belong to
liable for aiding and abetting an FCPA violation the class of individuals capable of committing a
or for conspiring to violate the FCPA, even if the substantive FCPA violation.” 209
foreign company or individual did not take any act
in furtherance of the corrupt payment while in the Additional Principles of Civil

territory of the United States. In conspiracy cases, Liability for Anti-Bribery
the United States generally has jurisdiction over all Violations: Aiding and Abetting
the conspirators where at least one conspirator is an and Causing
issuer, domestic concern, or commits a reasonably Both companies and individuals can be held
foreseeable overt act within the United States. 206 civilly liable for aiding and abetting FCPA anti-
For example, if a foreign company or individual bribery violations if they knowingly or recklessly

conspires to violate the FCPA with someone who provide substantial assistance to a violator. 210
commits an overt act within the United States, the Similarly, in the administrative proceeding context,
United States can prosecute the foreign company companies and individuals may be held liable for
or individual for the conspiracy. The same principle causing FCPA violations. 211 This liability extends to
applies to aiding and abetting violations. For the subsidiaries and agents of U.S. issuers.

instance, even though they took no action in the In one case, the U.S. subsidiary of a Swiss
United States, Japanese and European companies freight forwarding company was held civilly liable for
were charged with conspiring with and aiding and paying bribes on behalf of its customers in several
abetting a domestic concern’s FCPA violations. 207 countries. 212 Although the U.S. subsidiary was not
However, in United States v. Hoskins, the an issuer for purposes of the FCPA, it was an “agent”
Second Circuit addressed the question of whether of several U.S. issuers. By paying bribes on behalf of

individuals not directly covered by the FCPA anti- its issuers’ customers, the subsidiary both directly
bribery provisions could nevertheless be guilty of violated the FCPA and aided and abetted the issuers’
conspiring to violate, or aiding and abetting the FCPA violations.
violation of, the FCPA anti-bribery provisions, and What Is the Applicable Statute

concluded they could not. 208 Therefore, at least in of Limitations?
the Second Circuit, an individual can be criminally
prosecuted for conspiracy to violate the FCPA anti- Statute of Limitations in Criminal Cases
bribery provisions or aiding and abetting an FCPA The FCPA’s anti-bribery and accounting
anti-bribery violation only if that individual’s conduct provisions do not specify a statute of limitations for
and role fall into one of the specifically enumerated criminal actions. Accordingly, the general statutes of

categories expressly listed in the FCPA’s anti-bribery limitations periods apply. For substantive violations
provisions. of the FCPA anti-bribery provisions, the five-year
At least one district court from another circuit limitations period set forth in 18 U.S.C. § 3282
has rejected the reasoning in the Hoskins decision, applies. 213 For violations of the FCPA accounting
and concluded that the defendants could be provisions, which are defined as “securities fraud

criminally liable for conspiracy to violate the FCPA offense[s]” under 18 U.S.C. § 3301, there is a
anti-bribery provisions, and aiding and abetting limitations period of six years. 214

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